Check out this law professor's analysis of the Ricci decision handed down by the Supreme Court yesterday upholding a white firefighter's claim of discrimination against the New Haven Fire Department.  Among the highlights:

"Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law..."

"9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used [emphasis added]. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?"

"13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?"

All these -- and more -- are excellent questions posed by Mike Zimmer.  None of them were adequately answered by the Supreme Court's decision yesterday, which increasingly appears to be more questionalble than the appellate court's decision that preceded it. 

Do you Remember The Time when Michael Jackson basically caused the entire world to listen to the same album at the same time?  When Thriller became the best-selling album of all time?  When everyone wanted to be The Gloved One?  I do.  I was in elementary school at the time, and I used to wear a single shimmering glove to school on occasion.  At the time, this was a really cool thing to do even though it sounds ridiculous today.  Anyone who had the jacket Michael Jackson wore in the "Beat It" video was automatically cool. 

Simply put, Michael Jackson is the greatest musical artist of all time.  Nobody had his impact.  Nobody achieved his level of stardom either before or since.  He has been inducted into the Rock And Roll Hall Of Fame twice - once with the Jackson 5, and again on his own.  No solo artist has sold more records, and the only artist who MJ imitated in performance style was James Brown.

Some of my friends have argued that The Beatles were more influential, or that Prince had as great an impact.  Nonsense.  Michael Jackson was known throughout the world.  Go to Nigeria or Zambia or Hungary or Laos or Nepal, and people who have never heard of The Beatles or Prince know exactly who Michael Jackson is.  The only other musician on that level is Elvis. 

As far as influence goes, people who say The Beatles, Prince etc. are more influential are probably overlooking two things: 1) Michael's work with the Jackson 5, and  2) his influence on those who followed him. 

The Jackson 5 served as the blueprint for every modern pop and sould trio, quartet, quintet and sextet that followed.  While the Jacksons were likely vaguely influenced by early pop acts like The Temptations and the O'Jay's, they broke a ton of new ground both musically and in image.  To put it simply, the Jackson 5 were the first famous boy band.  Without the Jackson 5, the following acts would never have existed:

• Menudo (think about how long they were around and how many albums they sold)
• New Edition
• New Kids On The Block
• N'Sync
• Backstreet Boys
• Hanson
• ...etc,etc, etc
  

Without Michael Jackson the solo artist, none of these acts exist in their present form:

• Justin Timberlake
• Mariah Carey
• Usher
• Ne-yo
• Rhianna
• R. Kelly
• Britney Spears
• ...etc, etc, etc
  

Let's not forget the fact that Jackson almost singlehandedly ushered in the music video era, legitimized the video medium as an art form, and shattered musical segregation barriers like no other artist had before.  And the fact that his death almost broke the Internet.

What really amazed me about Michael is that he could do a 2+-hour concert, singing and dancing with equal vigor and AT THE SAME FREAKING TIME, and not have either activity suffer.  Performers dream of possessing that level of talent and energy.  How could he sing so well while dancing and sweating like that?  How could he do it for such long periods?  How could he remember the lyrics and execute the choreographed dance moves simultaneously?  How did he do it all without majorly screwing up?  As a musician myself, it boggles the mind. 

In his later life, MJ sadly became a caricature.  In my mind, he was always a victim who never stood a chance.  He was forced to be an entertainer from the time he was about 5 years old.  Before he was 10, he was playing frat parties and strip clubs.  His father was abusive, and his family completely dysfunctional.  He never seemed to develop beyond the emotional level of a 10-year-old.  In my mind, every controversial thing he did can be explained by the preceding sentence.  Give a 10-year-old complete independence, worldwide fame, no privacy and almost unlimited resources to do whatever he/she wants, and in my mind you have Michael Jackson's life explained.  In spite of this, he was one of the world greatest philanthropists.

I sensed a decent amount of regret in the tone of the remembrances of Michael Jackson after he suddenly died at the age of 50 on Thursday.  It seemed like the regret of a populace that suddenly realized they had spent a whole lot of time and energy hating and picking apart an artist instead of appreciating the genius of his work.  Wherever MJ is now, a small part of him might be relieved that the public and media don't have him to kick around anymore.  And we are now beginning to acknowledge that was the best ever at what he did.  

Right-wing pundits often complain that too many judges are 'liberals who legislate from the bench' instead of interpreting the laws as written by the legislature and Constitution.  Well, today's Supreme Court decision supporting white New Haven firefighters in their fight to have their promotional test results grant them the jobs they assumed they earned by scoring highest on the test was exactly that: legislating from the bench.

Justices Scalia, Alito, Roberts, Thomas and Kennedy chose to re-interpret Title VII of the Civil Rights Act in a manner that no previous Supreme Court decision had done, overturning a unanimous 3-judge ruling on the same case that OP highlighted a few weeks ago in a previous entry.   Under Title VII (and supporting decisions handed down in the following decades), any testing or hiring practice that produced outcomes that severely disadvantage ANY protected group -- whether that group is a race, a gender, or a religious group -- is illegal.  Such an outcome is called adverse impact.  The same rules apply if majority groups (whites, Christians) are hired at significantly lower rates than would be expected due to the use of a test or other selection procedure. 

Under previous legal precedent, once the plaintiff had proved that a test produced adverse impact, the burden fell on the hiring organization to prove their test was reliable, valid...and that no alternative selection procedures could be used that did not produce adverse impact.

Writing for the majority, Justice Kennedy said (according to the article) that "...an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said."  This is only true because Kennedy now says it is.  Again, in the past all the plaintiff had to do was prove that adverse impact exists before the burden fell back on the defendant.  Given the numbers of blacks and Latinos that took this promotional test, it's obvious that the outcome (no blacks and one Latino scoring high enough to be promoted) produced adverse impact. 

The city of New Haven seems justified in thinking they would not necessarily be able to prove that their selection system was valid and that no alternative selection process existed that would decrease adverse impact.  The city didn't promote people who didn't score the highest -- it simply didn't promote anyone at all, in part because the city's black firefighter's association was already threatening to sue.  And that organization had defeated the city in past discrimination cases. 

The one caveat in my analysis is that apparently, New Haven's consultants who designed the test failed to validate their tests, and thus had no data on whether or not they were effective.  This oversight is so unbelieveable and inexcusable that New Haven probably deserved to lose out of spite...although obviously, Supreme Court decisions aren't supposed to be made that way. 

This 5-part article details the history of firefighting selection processes, discrimination and tension through this case and a few others.  It's a very educational read. 

By now, you've probably heard about Monday's calamitous Metrorail accident that claimed the lives of at least 9 people.  Evidence is increasingly pointing towards a colossal mechanical failure of the relays that electronically control the trains.  It also appears the cars involved in the accident should have been taken out of service years ago, and were 2 months behind on their scheduled maintenance.  

Many are pointing out the need for a dedicated funding source for Metro in the wake of this disaster.  And rightly so.  All but the most right-minded libertarians need to understand a fact pointed out in this article:

"Many politicians (and their constituents) firmly believe that transit services (and Amtrak) should pay for themselves through fares. It won't happen. It doesn't happen anywhere. The French and Japanese bullet trains that we all admire are heavily subsidized. So are Europe's transit systems, which serve its cities uncommonly well."

If there is anything that government should spend money on and tax people to maintain, it's cheap, efficient public transportation.  Public transit helps business and commerce to thrive.  Every transit industry in America is subsidized to a degree, whether through infrastructure spending or other initiatives.  All over the world, the same situation exists. 

Yet the United States, allegedly the world's wealthiest nation, somehow cannot manage to provide reliable, safe and modern public transportation to the vast majority of its residents, even in cities.  Metro's situation isn't proof that private industry and self-sufficiency will somehow be able to accomplish something it has never done anywhere else in the world.  It is a national disgrace.  Politicians and advocacy groups need to start shooting straight with voters and residents.  People need to realize that transit costs tax money, period.

I'm going to tell the story of our band's first-ever live performance. 

In the previous 2 days, we had taken time off work, traveled to the city/state of the show, and practiced for 8 hours each day.  It wasn't ideal to be practicing so much right before the gig.  But since 3 of the 5 band members lived in faraway states, there wasn't any choice.  Plus, we had to add new songs at the last minute to make up for our sudden lack of an opener.  By the end of the second day of practice, my left fingers were cramping and I had tendinitis in my left forearm. 

But like I said, we had no choice.  We had to add to our set, practice our original set, and get all the kinks worked out, and we had 48 hrs to do it. 

Sound check was at 7:00 the night of the gig.  I'd never gone through a formal sound check before either -- all my prior gigs had been at bars or house parties where the band used its own PA system and had to deal with sound issues ourselves.  Not this time.

The venue was a legit music venue.  Nationally-known rock acts had graced this stage before, and I felt entirely unworthy to be there.  At the same time, here it was: a moment we'd been working towards for at least 5 months...or, from another perspective, the better part of two years. 

We had our own dressing room in the basement, with concrete walls, floor and ceiling as well as 5 lounge chairs for us to sit in while we waited for our time.  Only there was no opening act to wait for: ours had bailed at the last minute due to a family emergency (and that's why we had to add to our set at the last minute).  The doors had opened at 9, our opener should have started at 10.  We decided to go up to the stage around 10:15 or so.  We huddled together and said a prayer, then jogged up the stairs from the basement and into the venue.  Everyone cheered as we hopped up on stage and picked up our instruments. 

From that point forward, the night was a bit of a blur.  I sang a few songs, but mostly played my instrument and did backing vocals. The set was not smooth; we made plenty of mistakes.  But every band makes mistakes; the important thing was that we plowed through them and the large crowd (135 people) ate it up.  At one point, a pregnant bartender was jumping up and down with our music.  When you get the bartenders at a live music venue moving, you must be doing something right.

Let me tell you: the feeling of hearing fans of your bands cheer as they recognize the intro to one of your songs, or hearing them sing the lyrics perfectly along with you, is an indescribable high.  I've been on the opposite side of the equation plenty of times before, as an enthusiastic audience member singing as one of my favorite bands played.  But being on the stage side of things was overwhelming in a good way.  Awe-inspiring, even.  Like I said, I can't really put it into words. 

We played for over two hours, not including the 20-25-minute break in the middle.  The second set was definitely more fun than the first - we threw the crowd some curveballs they weren't expecting, and they loved it.  I sang a song by myself, dedicated it to my brother, and had a tough time getting all the way through it without breaking down.  After I was done, I couldn't hold it in anymore.  He would have been there if he was alive.  Some in the crowd noticed.  But there was no time to let myself go too much - we had more songs to play.  I recovered quickly enough. 

You know how athletes dedicated their performances to someone special before or after they perform?  Or when a band does it?  This was it for us.  This was our moment.  All of us had performed before, but never under these circumstances, playing legit original mainstream music in front of a large crowd that contained people who were hearing us for the first time.  This was our first statement to the world.  And we felt it. 

When we finished, the crowd demanded that we do one more song.  Fortunately, my bandmates had planned for that contingency and had left a crowd-pleaser for the very end.  Again, they loved it.  But this time, when we were done, we were really done.  We were exhausted.  It went well enough that we confirmed playing another show in Chicago, and probably one in DC as well.  We taped the gig with multiple cameras and made an audio recording as well; we plan to release some of the footage as videos.

Despite all the highs and lows of the past 18 months, all the gains and all the losses, I wouldn't trade any of it if it meant that I had to give up the experience of playing that show.  Well, except my brother -- I wish he was still here, but I'm sure he was listening and I'm sure he was proud.

This has to be a sign of the apocalypse: I beat Dave to the very cellphone/PDA he has been planning on buying.

When I bought the Palm Pre on my birthday, I didn't know I would get it two days before Dave got it, too...not unless he had decided to hold out for the new iPhone.  Well, turns out the new iPhone announcement didn't include a physical keyboard, or a cheaper monthly plan, or a provider that didn't have the letters A, T, and T in their company name. 

So I got the Palm Pre on my birthday, while it was sold out all over New York.  When I talked to Dave on Sunday, he didn't have it yet but was chomping at the bit to get one.  I was stunned.  This had never happened before.  I can't remember a single time where I was in the position to tell Dave what a piece of technology was like.  It was like living in some kind of parallel universe where everything was the opposite of what I expected.   

Anyway, the Pre is awesome.  It's not perfect, but it provides many of the same features at the same level as the iPhone 3G, and even does some things better.  And I like Sprint's data network and plan prices much, much better than I like AT&T's crappy data network and overpriced plans.  For those of us who like full Internet browsing, an easy, pretty interface, a physical keyboard and -- perhaps best of all -- a quality device that doesn't look, feel or sound as though the phone portion was an afterthought, the Pre seems like a great choice.  So far.